Admissibility of Xerox Copy as Evidence

The dynamic nature of legal proceedings demands that evidence be carefully considered for admissibility,¹ especially in this age of rapid technological advancements. The admissibility of Xerox copies as evidence is one area of the Indian legal system that has grown extremely important. Xerox copies, the main instrument for document replication, are now commonplace in court cases, leading to a complex discussion about their veracity, integrity, and adherence to the law. The Indian Evidence Act, 1872 being a venerable piece of legislation that outlines the guidelines for evidence admissibility in Indian courts, is the central document under discussion here. Sections 61 to 65 of the said Act provide the framework for thinking about secondary evidence, and it is within this section that the admissibility of Xerox copies is established. The intersection of technology and legal practice by outlining the requirements for admitting electronic evidence which includes Xerox copies of electronic records. This study of Xerox admissibility in Indian law aims to clarify nuances, difficulties, and exceptions that influence the terrain of evidentiary standards in modern jurisprudence, as the legal community wrestles with the complex effects of technology on legal proceedings therefore, a crucial addition was made by way of an amendment in 2000.²

Analysing Admissibility of Xerox

Before the Court of law, every piece of evidence is not relevant and admissible. All relevant evidence is not admissible but all admissible evidence is relevant.³ Whether Xerox copy is considered as secondary evidence under documentary evidence has always been in the plethora of judgments. To decide the proof of evidence and admissibility of Xerox copy or of any material for evidence, regarding which Objection may be raised on its admissibility, the Hon'ble trial court may decide the raised objections with respect to admissibility at the final stage of trial but before final judgment.⁴ It is observed by the court that the objections as to the admissibility of documents in evidence may be classified into two classes:

1. an objection that the document which is sought to be proved is itself inadmissible in evidence; and
2. where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient.⁵

In the first case, merely because a document has been marked as 'an exhibit', an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken when the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The latter proposition is a rule of fair play.

The crucial test is whether an objection if taken at the appropriate point of time, would have enabled the party to tender the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof.

On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the Court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the Court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the Court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties.

Out of the two types of objections, referred to hereinabove in the latter case, failure to raise a prompt and timely objection amounts to a waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved to be admissible in evidence. In the first case, acquiescence would be no bar to raise the objection in a superior Court.⁶

The provisions of Sections 64 and 65 of the Evidence Act widens the path for interpretation and admissibility of xerox as a piece of evidence, therefore, xerox of original documents may be admitted as secondary evidence.

The conditions under which secondary evidence regarding the existence, state, or contents of an original document may be admitted in court are undoubtedly outlined in Section 65 of the Evidence Act. The following are the three main scenarios that Section 65 describes:⁷

1. Non-production by Possessor: When the original document is in the possession or control of the person being proven false, secondary evidence may be used. Furthermore, secondary evidence becomes admissible if the original is in the possession of someone who is outside the court's jurisdiction or is not subject to its process, or if the original is in the possession of someone who is required by law to produce it but refuses to do so despite being given due notice under Section 66 of Evidence Act.
2. Destruction, Loss, or Inability to Produce: Secondary evidence is admissible if the original document has been destroyed or lost. Furthermore, if the party attempting to present evidence of the document's contents cannot, for reasons not resulting from their own fault or neglect, produce the original in a reasonable time, secondary evidence is permissible. This provision acknowledges practical difficulties that may impede the timely presentation of the original.
3. Immovable Character of the Original: Secondary evidence may be admitted if the original document is not readily movable. This acknowledges that some documents may be difficult to transport or present in their original form because of their inherent characteristics.

Section 65 of the Evidence Act essentially establishes a framework for the admission of secondary evidence in situations where it would be impractical or impossible to directly present the original document in court due to circumstances relating to its possession, availability, or nature. ⁸ This clause guarantees a flexible and equitable method of presenting the evidence, especially when the original document is lost, altered, or not easily accessible.

It is imperative to acknowledge that the admissibility of photocopies as evidence is contingent upon several factors, including the authenticity of the original document, the circumstances surrounding its creation, and the photocopy's accuracy as a representation of the original document. Before deciding whether to use the photocopy in the resolution of the relevant matter, the court will carefully examine the photocopy's authenticity and dependability.

Conclusion

The circumstances under which secondary evidence pertaining to documents is acceptable are outlined in Section 65 of the Evidence Act. It is possible to refer to Section 63(2), which permits the admission of a document as secondary evidence, provided that its accuracy is verified. This includes copies created by mechanical processes such as Photostats. Verifying the accuracy of a photostat copy is crucial when presenting it in court. A photostat copy of a document cannot be accepted as secondary evidence if it is presented without evidence of its accuracy, without a comparison with the original, or without verification that it is a true reproduction. Put more simply, a photostat copy's admissibility depends on the other party's acknowledgment or proof of its authenticity. Thus, a photostat copy of a document may only be introduced into evidence in situations where it is claimed and proven that the original document was once there but has since been lost, destroyed, or is in the possession of the other party and they refuse to produce it, among other situations listed in Section 65 of Evidence Act. In case of a conflict between secondary evidence and primary evidence, it is settled law that the primary evidence will prevail.

This article is authored by Vishal Kumar, a Delhi based lawyer.